A police officer dismissed by a misconduct panel claimed in the Employment Tribunal that her dismissal discriminated against her because of disability. The lower courts held that judicial immunity barred the claim. The Supreme Court held that EU law required police officers to have access to the Employment Tribunal for such claims, and that the Equality Act 2010 must be interpreted so that the claim could proceed.
The appellant, a serving police officer, was assaulted in 2010 and subsequently suffered post-traumatic stress disorder. In 2011 she was involved in an incident which led to her arrest. She asserted that her behaviour was related to her PTSD. She was charged with misconduct and appeared before a panel constituted under the Police (Conduct) Regulations 2008. Apart from one issue of fact resolved in her favour, she accepted the misconduct alleged, and relied on her record and her PTSD in mitigation. On 12 November 2012 the panel dismissed her without notice.
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P’s appeal to the Police Appeals Tribunal did not proceed. She also brought an Equality Act claim in the Employment Tribunal. The Commissioner relied on judicial immunity for the disciplinary panel. Applying the earlier decision in Heath, the courts below upheld the striking out of her claim.
EU law and the Equality Act
Lord Reed approached the case under the EU law applicable at the time. Directive 2000/78/EC covered disability discrimination in employment, including the dismissal of police officers. It required access to effective procedures and remedies.
The Equality Act 2010 implements the Directive. Because a police officer holds an office rather than being an employee, section 42(1) treats the office of constable, for the purposes of the Act’s employment provisions, as employment by the chief officer in respect of any act done by the chief officer, and by the responsible authority in respect of any act done by that authority. In the Metropolitan Police the chief officer is the Commissioner. Section 120 gives the Employment Tribunal jurisdiction. Where it finds a contravention it may make a declaration, award compensation or make recommendations, without necessarily undoing the dismissal.
Why immunity could not bar the claim
Under the 2008 Regulations, the misconduct hearing of an officer who was not a senior officer was conducted by a three-person panel appointed by the appropriate authority, not by the chief officer personally. The panel could find gross misconduct and impose dismissal without notice. An appeal lay to the Police Appeals Tribunal, which could allow or dismiss the appeal but could not make declarations, award compensation or make recommendations, and did not have the Employment Tribunal’s expertise in equal treatment.
In Heath, which concerned events before the Framework Directive, the Court of Appeal had accepted that members of a police disciplinary board enjoyed judicial immunity at common law, and had held that an earlier equal treatment directive did not displace that immunity. Auld LJ treated immunity as a procedural qualification which could be maintained within a national margin of appreciation. The Supreme Court found it unnecessary to decide whether the common-law conclusion in Heath was correct. EU law had to be the starting point and, under the European Communities Act 1972, took priority over domestic law.
The Directive confers on police officers a directly effective right to equal treatment in relation to dismissals. None of its exceptions applied. Equivalence requires access to the Employment Tribunal, the specialist forum for analogous domestic claims, which can award compensation even where the disciplinary decision stands. Leaving officers with only an appeal to the Police Appeals Tribunal would be neither equivalent nor effective, because that tribunal cannot remedy discrimination which does not vitiate the panel’s decision. The United Kingdom has no margin of appreciation to deny an effective and equivalent remedy. The creation of a process which entrusts discipline to persons who might attract judicial immunity cannot bar an Employment Tribunal complaint of treatment contrary to the Directive. National immunity rules apply only so far as they are consistent with EU law. The reasoning in Heath on EU law was therefore unsound.
Read literally, section 42(1) did not catch the panel. Its decision was not an act of the chief officer or the responsible authority. The panel was not, for this purpose, an employee acting in the course of employment, nor an agent: the regulations conferred the disciplinary powers on the panel itself. A literal reading would deprive section 42(1) of much of its practical effect and would fail fully to implement the Directive, contrary to its purpose. Disciplinary decisions concerning senior officers and probationary constables already fell within the statutory scheme; it was presumably intended that other officers should be protected as well.
The interpretation adopted
The court resolved the difficulty by interpreting section 42(1) as extending to the exercise of disciplinary functions by misconduct panels in relation to police constables. That reading runs with the grain of the legislation and is required in order to give effect to the Directive. Lord Reed explained that, in a case such as the present, the subsection is to be read as treating the office of constable as employment by the chief officer also in respect of relevant acts of persons conducting a misconduct meeting or hearing. The court was not amending the Act, and the explanatory words were not to be treated as if enacted. The same approach could be taken to another type of panel if that were necessary to comply with the Directive. Interpreted in this way, the Act overrides, by force of statute, any bar which common-law judicial immunity might otherwise create.
Lord Hughes explained the practical division of responsibility. The Employment Tribunal could award relief for discrimination but could not alter the disciplinary outcome. The Police Appeals Tribunal could consider discrimination in deciding whether the dismissal should stand, but could not compensate the officer for it.
Verdict: The Court unanimously allowed P’s appeal and remitted her claim to the Employment Tribunal. P had established her right to a hearing. Whether the dismissal was discriminatory and whether she was entitled to a remedy remained open.
Source: P v Commissioner of Police of the Metropolis [2017] UKSC 65
